25 MISCONDUCT SPECIFIC OFFENCES (VIOLATIONS)

Transcription

1 25 MISCONDUCT SPECIFIC OFFENCES (VIOLATIONS) 25.1 Absence without leave (AWOL) Khulani Fidelity Services Group v CCMA and others [2009] 7 BLLR 664 (LC) SACWU v Dyasi [2001] 7 BLLR 731 (LAC) SA Broadcasting Corporation v CCMA & others (2002) 23 ILJ 1549 (LAC) Mofokeng v KSB Pump (2003) 24 ILJ 1756 (BCA) Jammin Retail (Pty) Ltd v Mokwane & others [2010] 4 BLLR 404 (LC) Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for The Wood and Paper Sector (2013) 34 ILJ 2266 (LC) Classic Number Trading 80 (Pty) Ltd T/A Nashua Tshwane v Shaik-Ahmed and others [2015] 71 (LC) Mgobhozi v Naidoo NO & others [2006] 3 BLLR 242 (LAC) HOTELICCA obo Tshijila v Azores Manufacturers cc [2006] 11 BALR 109 (LAC) Classic Number Trading 80 (Pty) Ltd T/A Nashua Tshwane v Shaik-Ahmed and Others (JR838/13) [2015] ZALCJHB Withholding services after S197 transfer SACWU v Unitrans Supply Chain Solutions (Pty) Ltd (2009) 30 ILJ 2469 (LC) Lebowa Platinum Mines Ltd v CCMA & others [2002] 5 BLLR Absence without leave Imprisoned employees Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2005) 26 ILJ 1519 (LC) Eskom Ltd v CCMA & others [2008] JOL22274 (LC) NUM & another v Samancor Ltd (Turbatse Ferrochrome) & other (2011) 32 ILJ 1618 (SCA) Samancor Tubatse Ferrochrome v MEIBC & others (2010) BLLR 824 (LAC) NUM & another v CCMA & others [2009] 8 BLLR 777 (LC)

2 25.4 Dismissal based on suspicion Mbanjwa v Shoprite Checkers (Pty) Ltd and others (DA4/11) [2013] ZALAC 129 (7 November 2013) Supervening impossibility of performance Moeketsi v Spilkin Optometrist [2012] JOL (CCMA) Mamabolo v Protea Coin Group (Pty) Ltd [2011] 10 BALR 104 (CCMA) 25.6 Dismissal for incapacity IMATU obo Strydom v Witzenburg Municipality and others [2012] 7 BLLR 660 (LAC) NUM v Libanon Gold Mining co Ltd (1994) 15 ILJ 585 (LAC) 25.7 Under the influence of alcohol / drugs Marko Shanya v Trojan Truck systems (Pty) Ltd [2014] (CCMA) Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC) Tosca Labs v CCMA & others [2012] 5 BLLR 529 (LC) Transnet Freight Rail v Transnet Bargaining Council & others [2011] 6 BLLR 594 (LC) Black Mountain v CCMA & others [2005] 1 BLLR 1 (LC) 25.8 Derogative and racist remarks Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and others (2002) 23 ILJ (LAC) Labour Court in Custance v SALGBC & Others (2003) 24 ILJ (LC) Modikwa Mining Personnel Services (Pty) Ltd v CCMA & Others [2012] ZALCJHB (Handed down 29 June 2012); and Specialized Belting & Hose (Pty) Ltd v Sello NO & Others [2009] 7 BLLR 704 (LC) and also JAMAFO Nero v Pick n Pay (2007) 28 ILJ 588 (CCMA) Solidarity/MWU on behalf of Van Staden v Highveld Steel & Vanadium & another (2005) 26 ILJ 2045 (LC) Sedick & Another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA)

3 25.9 Unauthorised removal of employer s property UNAUTHORISED EATING IN A SUPERMARKET Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 12 BLLR 1211 (LAC) Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC) CONCEALMENT & DISHONESTY Rainbow Farms (Pty) Ltd v CCMA & others [2011] 5 BLLR 451 (LAC) Woolworths (Pty) Ltd v CCMA & Others [2011] 10 BLLR 936 (LAC); Miyambo v CCMA & others (2010) 31 ILJ 2031 (LAC); De Beer Consolidated Mines Ltd v CCMA & Others [2000] 9 BLLR 995 (LAC) and to Shoprite Checkers (Pty) Ltd v CCMA & Others [2008] 9 BLLR 838 (LAC); Toyota South Africa Motors (Pty) Ltd v Radebe & Others [2000] 3 BLLR 243 (LAC) and Hulett Aluminum (Pty) Ltd v MEIBC & Others [2008] 3 BLLR 241 (LC) Cecil Nurse (Pty) Ltd v Busakwe NO and Others [2015] 28 (LC) Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and others [2015] 9 BLLR 887 (LAC) NUM and Another v Commission for Conciliation, Mediation & Arbitration and others [2015] 10 (LAC) Rheinmetall Denel Munition (Pty) Ltd v National Bargainig Council for the Chemical Industry and others [2015] ZALCJHB 49 OVERTIME CLAIM AND DISHONESTY Ambro Sales v MEIBC and others [2015] 125 (LC) Misrepresentation Absa Bank Limited v Rogers and others [2015] 26 (LC) (20 March 2015) Maponya v South African Local Government Bargaining Council (SALGBC) and others [2015] 140 (LC) Sleeping whilst working impermissible hours and dishonestly receiving payment for such hours Boardman Brothers (Natal) (Pty) Ltd v CWIU [1998] 7 BLLR 655 (A)

4 25.12 Collective Misconduct Foschini Group v Maidi & others (2010) 31 ILJ 1787 (LAC) True Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken v CCMA and Others (2015) 2 BLLR 194 LC Chauke & others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) FEDCRAW v Snip Trading (Pty) Ltd [2001] BALR 669 (P) Western Platinum Refinery Ltd v Hlabela and others JA32/ Polygraph test DHL Supply Chain (Pty) Ltd v NBCRFLI and others [2014] 9 BLLR 860 (LAC) (13 May 2014) FAWU obo Kapesi and others v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC) SATAWU and Others v Khulani Fidelity Security Services (Pty) Ltd (2011) (LAC) NUM & others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ137 (LC) Colven Associates George CC v Commission for Conciliation Mediation and Arbitration and Others [2015] 26 (LC) Insubordination Wasteman Group v SAMWU [2012] 8 BLLR 778 (LAC) National Union of Mineworkers obo Selemela v Northam Platinum Ltd [2013] 10 (LAC) SAMWU and another v Rand Water and Others [2015] 138 (LC) Failure to disclose previous dismissal ESKOM Holdings Ltd v Fipzaz & others (2013) 34 ILJ 549 (LAC) ABSA Bank Ltd v Fouche 2003 (1) SA 176 (SCA)

5 25.16 Failure to attend a disciplinary enquiry Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 4 ALL SA 866 (SCA) (17 May 2007) Fidelity Cash Management Service v CCMA & others [2008] 3 BLLR 197 (LAC) Dolo v CCMA (2011) 32 ILJ 905 (LC) Non adherence to company procedure Delport v SA Red Cross AMS (Air Mercy Services) and others [2015] 28 (LC) Mkhaba v Commission for Conciliation, Mediation And Arbitration and Others [2015] 131 (LC) Failure to act in good faith Foschini Group v Maidi & others [2010] 7 BLLR 689 (LAC) Dishonesty / fraud Senqu Municipality v SALGBC and others (P621/2010) [2015] ZALCPE 24 (27 March 2015) Failure to act with due diligence Rabothatha v MEIBC and others (JR 3019/2012) [2015] ZALCJHB 106 (25 March 2015) Conflict of interest Nedbank Limited v Mvelase and others (D.299/2014) [2015] ZALCD Breach of till policy / till shortages Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (DA7/2013) [2015] ZALCD Sexual assault Sekobo v MEC Department of Basic Education (Gauteng) and others [2015] ZALCJHB 51

6 25. MISCONDUCT SPECIFIC OFFENCES (VIOLATIONS) 25.1 Absence without leave (AWOL) and Desertion / Abscontion In Khulani Fidelity Services Group v CCMA and others [2009] 7 BLLR 664 (LC) the Court held that unauthorized leave would only constitute desertion if the employee has fixed intention never to resume work. The Court further held that it was unreasonable for the employer to have concluded that the employee had deserted as the employee had sent his medical certificate to work In SACWU v Dyasi [2001] 7 BLLR 731 (LAC) the Court held that desertion amounts to repudiation of the contract and that the employer was entitled to accept or reject it. The acceptance thereof results in dismissal In SA Broadcasting Corporation v CCMA & others (2002) 23 ILJ 1549 (LAC) Court confirmed the principle that termination occurs once the employer accepts the repudiation. The Court held further that the employer was obliged to give effect to the principle of the audi alteram partem rule before the employer could take the decision to dismiss an employee In Mofokeng v KSB Pump (2003) 24 ILJ 1756 (BCA) it was held that the employer was entitled to terminate the employment contract, based on the uncertainty about the length of the employee s absence. It was however stated that the dismissal had to be effected in accordance with a fair procedure and that the employer had a duty where possible to establish whether an employee had any intention of returning. As such the employer had to invite the employee to attend a disciplinary hearing (where he could be found) and then to determine the intention of the employee In Jammin Retail (Pty) Ltd v Mokwane & others [2010] 4 BLLR 404 (LC) the court held that the law requires an employer to grant deserters a hearing before implementing dismissing them. In this instance the address of the applicant was known to the respondent, but it made no attempt to contact her In Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for The Wood and Paper Sector (2013) 34 ILJ 2266 (LC) the Court held that the employer was justified in inferring an intention to desert his employment, from the employee s disappearance from work without reporting his whereabouts. In the absence of such report, the employee left the employer in ignorance as to his whereabouts or the reasons for his absence. Thus the employee s dismissal in absentia was substantively justified at the time, provided this did not close the door to the possibility of reversing the decision if the employee returned and was able to satisfactorily justify his absence. Where the employee failed to justify his absence on his return, his dismissal in terms of the code was justified, the onus being on the employee to justify his absence In Classic Number Trading 80 (Pty) Ltd T/A Nashua Tshwane v Shaik-Ahmed and others [2015] 71 (LC) the employee failed to provide a satisfactory justification for his prolonged absence without permission. The court held that the absence was excessive

7 and thus required frank and proper justification. Being a supervisor placed an additional burden on the employee to set an example of good conduct and compliance with policies to his juniors. He was totally indifferent to the interests of his employer, and in the circumstances it was unreasonable to expect the employer to keep the employee in its employ when he has little regard to its operational interest, and on top of that showed no remorse when confronted about the incident In Mgobhozi v Naidoo NO & others [2006] 3 BLLR 242 (LAC) the court held that in terms of the Law of Evidence Amendment Act 45 of 1988 the court was entitled to enquire as to why the medical certificate was not provided in an affidavit form since a medical certificate on its own constitute hearsay evidence In HOTELICCA obo Tshijila v Azores Manufacturers cc [2006] 11 BALR 109 (LAC), the following factors were held to be decisive in whether absence from work can justify a dismissal. The length of absence; The nature of the employee's job; Previous records; and Whether the employee attempted to contact the employer during the period of absence In Classic Number Trading 80 (Pty) Ltd T/A Nashua Tshwane v Shaik-Ahmed and Others (JR838/13) [2015] ZALCJHB 71 the Employee was dismissed for desertion and being absent without authorisation for the period 26 November 2012 to 17 December The court held the real issue underlying substantive fairness, in cases of this nature was whether or not the Employee had offered satisfactory justification for his extended unauthorised absence. The issue of the intention to desert is a secondary issue Withholding services after Section 197 transfer In SACWU v Unitrans Supply Chain Solutions (Pty) Ltd (2009) 30 ILJ 2469 (LC) a business had been transferred as a going concern in terms of section 197(2) of the LRA. The employees refused to "recognise" the new employer and withheld their services. The court concluded that this conduct was unlawful and unjustified, but nonetheless found that the dismissal of the employees was unfair as the breakdown had been caused by the failure of the employers to communicate adequately with the union and employees. The court also criticised the haste with which the (new) employer acted in dismissing the employees In Lebowa Platinum Mines Ltd v CCMA & others[2002] 5 BLLR 429 (LC) the Court held that desertion by an employee is a breach of contract which requires acceptance by the employer and that it was in fact the acceptance of the breach which constituted the dismissal. The Court also held that once an employee tendered his services the employer was required to hold a disciplinary inquiry.

8 25.3 Absence without leave imprisoned employees In Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2005) 26 ILJ 1519 (LC) the Court held that imprisonment would suspend the employer s obligation to pay the employee. It also upheld the commissioner s finding that the dismissal was unfair as the employee had a valid explanation for his absence, which the employer should have considered. Absence due to imprisonment may constitute a supervening impossibility to tender services. If that is the case, the employer must as a matter of fairness consider alternatives to dismissal such as a temporary replacement. If that is not possible the employer must engage the employee in consultation in terms of section 189 of the Labour Relations Act about his redundancy or about its operational requirements In Eskom Ltd v CCMA & others [2008] JOL22274 (LC) an employee was reinstated after he was dismissed for having absconded. During the period of his absence he was incarcerated and when he was released he reported for duty. The commissioner determining the fairness of the dismissal found that the dismissal was substantively unfair but procedurally fair. In making this finding she considered the provisions of the employee s employment contract, which stipulated that the contract would terminate if the employee failed to report for seven consecutive calendar days unless he was physically prevented from doing so. The commissioner held that this exception also applied to instances where the employee was in jail and as such the employee had a reasonable explanation for his absence. The review application was filed late and when the Court considered the application, the Court with reference to Sidumo & another v Rustenburg Platinum Mine Ltd & others (2007) 28 ILJ 2405 (CC) held that the Employer had limited prospects of success and such condonation was refused In NUM & another v Samancor Ltd (Turbatse Ferrochrome) & other (2011) 32 ILJ 1618 (SCA) the Court held the normal principles that a contract can be cancelled on the basis that the employee was no longer capable of performing is only part of the enquiry as the question still remains whether under the circumstances of the case it would be fair to dismiss the employee. The Court also held that the employer should have done more to accommodate the employee and confirmed the finding of the commissioner that the dismissal was in fact substantively unfair In Samancor Tubatse Ferrochrome v MEIBC & others (2010) BLLR 824 (LAC) the Court held that the following factors should be considered in determining if the dismissal was fair: The reason for the incapacity, including whether it was a lawful arrest; Whether the employee was at fault Whether he or she caused the situation; Whether the employee was in the end convicted; and

9 Whether the employee s actions leading to the arrest rendered a continuation of the employment relationship intolerable; The extent of the incapacity (permanent or temporary); Alternatives that could be considered; The size and financial position of the employer party; The importance of the position occupied by the employee; Level of skill required for the position; Does fairness require that the position be kept open; Could a temporary arrangement be made; Personal circumstances of the employee; It was held that a larger organization with deeper monetary pockets may be expected to take a more generous approach to the particular problem In NUM & another v CCMA & others [2009] 8 BLLR 777 (LC) the Court held that the commissioner must consider whether the impossibility is permanent or for a lengthy period Dismissal Based on Suspicion In Mbanjwa v Shoprite Checkers (Pty) Ltd and others (DA4/11) [2013] ZALAC 129 (7 November 2013) the court held that the test at all times remains one of balance of probabilities. Reasonable or strong suspicion is not adequate to terminate the employment relationship Supervening impossibility of performance In Moeketsi v Spilkin Optometrist [2012] JOL (CCMA) the employee was banned from a shopping center where her workplace was situated. She was later dismissed on account of supervening impossibility. The commissioner held that the employer should have supported the employee more as there was no evidence of wrongdoing on the side of the employee and as such her dismissal was found to be substantively unfair In Mamabolo v Protea Coin Group (Pty) Ltd [2011] 10 BALR 104 (CCMA) the CCMA held that where an employee s PSIRA permit was withdrawn after he was convicted and given a 3 year prison sentence, his contract could lawfully be terminated based on the permanency of the incapacity Dismissal for incapacity In IMATU obo Strydom v Witzenburg Municipality and others [2012] 7 BLLR 660 (LAC) it was held that where the assessment reveals the employee is permanently incapacitated, the inquiry does not end there. The employer must then establish whether it cannot adapt the employee s working circumstances so as to accommodate the incapacity, or adapt the employee s duties or provide him with alternative work.

10 In NUM v Libanon Gold Mining co Ltd (1994) 15 ILJ 585 (LAC) the Court held that the employer had a duty to accommodate an incapacitated employee. The possible alternatives must be exhausted in consultation with the employee and his union Under the Influence of Alcohol / Drugs In Marko Shanya v Trojan Truck systems (Pty) Ltd [2014] (CCMA) an employee was charged and dismissed for reporting whilst being under the influence of drug (dagga). The commissioner held that the dismissal was both procedurally and substantively fair as the applicant was aware that smoking dagga was illegal and that he was not supposed to report for duty under the influence of drugs In Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC) it was held an employee will only be under the influence of alcohol if he was not able to perform the tasks entrusted to him. In this particular case it was held that an employee would not have been able to perform his task, namely driving a 32-Ton Truck with the same skill as a sober person. It was held the real test was whether the competence to perform has been impaired. The Court also held that where a person refuses to undergo a breathalyzer test, the obvious explanation would be that he wanted to avoid the risk of incriminating himself In Tosca Labs v CCMA & others [2012] 5 BLLR 529 (LC) the employee registered positive on the breathalyzer. However the employer failed to prove that he was under the influence of alcohol as he was performing his duties without causing an incident and as such the commissioner held the dismissal was unfair. The Court upheld the decision In Transnet Freight Rail v Transnet Bargaining Council & others [2011] 6 BLLR 594 (LC) the Court held where there is no proof that an employee has a dependency problem the fact that an employee was under the influence of alcohol could not be treated as incapacity. The Court further held that where an employee consciously consumes alcohol before reporting for duty he was guilty of misconduct and could be fairly dismissed In Black Mountain v CCMA & others [2005] 1 BLLR 1 (LC) the dismissal of the employee for being under the influence of alcohol whilst driving a heavy vehicle was substantively unfair because the employer ignored standing procedure requiring suspension of disciplinary action while the employee undergoes voluntary rehabilitation Derogative and racists remarks In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and others (2002) 23 ILJ (LAC) the Labour Appeal Court held that calling a person a Kaffir had no place in the workplace and when it happens it is a dismissible offence as it impacts on Constitutional values such as dignity, equality and freedom The Labour Court in Custance v SALGBC & others (2003) 24 ILJ (LC) held that off-duty racism impacts on the workplace.

11 In Modikwa Mining Personnel Services (Pty) Ltd v CCMA & Others [2012] ZALCJHB (Handed down 29 June 2012) it was held the plain meaning of words on their own could constitute racial slur, which could indicate racism. See Specialized Belting & Hose (Pty) Ltd v Sello NO & Others [2009] 7 BLLR 704 (LC) and also JAMAFO obo Nero v Pick n Pay (2007) 28 ILJ 588 (CCMA) where the impact of derogatory and discriminatory statements on the employer s workplace was considered In Solidarity/MWU on behalf of Van Staden v Highveld Steel & Vanadium & another (2005) 26 ILJ 2045 (LC) the Court held that an appeal which, would amount to a rehearing, was permissible because the acquittal of the employee by the original disciplinary tribunal on charges of racial abuse was irrational. It was held that fairness was the yardstick for determining whether a rehearing should be allowed In Sedick & another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA) it was held that bringing the company name into disrepute by publishing derogative remarks about an employer on Facebook could result in a fair dismissal Unauthorised removal of employer s property and pilferage Pilferage in supermarkets is a serious problem and employers have reason to make rules designed to eradicate the problem. This does not however mean that every breach of such rules should be visited with the sanction of dismissal. In other words commissioners should not necessarily tolerate a zero tolerance approach. Factors such as the value of the items involved, the employee s length of service and a clean disciplinary record may move an arbitrator to find that dismissal was an unfair sanction and such a finding would not be unreasonable In Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 12 BLLR 1211 (LAC) an employee who was a first offender with 30 years of service was captured on video for having consumed food in an area in which such activities were prohibited. The employee was thereafter dismissed for misconduct. The Court acknowledged that shrinkage was a real problem for employers like Shoprite. The Court held that all the relevant circumstances must be taken into account. Factors in mitigation, such as an employee s years of service and clean service record needed consideration when the appropriateness of the sanction had to be determined In Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC) although the commissioner found the employee (who was seen on video footage on 3 occasions eating pap and bread belonging to the employer) was not guilty of theft, on appeal the legal representatives of the employee conceded that he was guilty thereof. The LAC therefore only had to consider the issue of sanction. The Court considered in aggravation the shrinkage the respondent suffered at the time of the offence and that employees were

12 aware of the losses suffered by its employer. The Court also considered that the employee was dishonest even in his conduct before the Court and that there was clear evidence that the trust relationship was irretrievably broken down. The Court held that the dismissal was fair. CONCEALMENT AND DISHONESTY In Rainbow Farms (Pty) Ltd v CCMA & others [2011] 5 BLLR 451 (LAC) an employee was dismissed for taking a liter of milk without authorization. The employee was entitled to drink the milk for free but only whilst at work. He was caught with the milk after he had passed through the first security gate. The Court held that he had a clear intention to remove the milk which was sufficient to constitute unauthorized removal of milk, which was deemed a dishonest act for which dismissal was an appropriate sanction In Woolworths (Pty) Ltd v CCMA & Others [2011] 10 BLLR 936 (LAC) the LAC held that where an employee had concealed items underneath her clothes that she had committed an act of gross dishonesty which resulted in an irreparable breakdown of the employment relationship. The Court with approval referred to Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) where it was held that long service cannot save an employee who is guilty of having committed serious misconduct In Miyambo v CCMA & others (2010) 31 ILJ 2031 (LAC) an employee was found in possession of scrap metal in a random security check. He was not authorized to have it and was aware the employer was going to sell it for its own benefit. The Commissioner found that the employee committed theft but the sanction was too severe. The Labour Court overturned the finding. On appeal the legal representative of the employee conceded that he committed theft but argued the employee had 25 years of service and a clean disciplinary record. In its finding the Court emphasized the requirement of the trust relationship in relation to the employer s operational requirements. The Court then with approval referred to the matter of De Beer Consolidated Mines Ltd v CCMA & Others [2000] 9 BLLR 995 (LAC) and to Shoprite Checkers (Pty) Ltd v CCMA & Others [2008] 9 BLLR 838 (LAC) which justified a strict approach to dishonest conduct in the workplace on the basis of the employer s operational requirements In Cecil Nurse (Pty) Ltd v Busakwe NO and Others [2015] 28 (LC) the Court held that when assessing conduct of an Employee that is of dishonest nature, the long established rule applied in the Labour and Labour Appeal Court, i.e. that the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, such as long service and a clean record, against the sanction of dismissal in cases of dishonesty, must prevail. It is one of the fundamentals of the employment relationship that the Employer should be able to place trust in the Employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it, thereby warranting dismissal.

13 In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and others [2015] 9 BLLR 887 (LAC) the court held that employer s policy requiring employees to declare goods which might belong to the employer before leaving work is designed to combat shrinkage, but does not amount to proof of theft. Employers are not permitted to rely inflexibly on zero tolerance approach to certain offences, and to dismiss employees regardless of circumstances. The employee pleaded guilty conceding that she had forgotten to declare the deodorant. The Court noted that the employee had not been accused of theft, but of failing to account for possession of the deodorant when she left the store In NUM and Another v Commission for Conciliation, Mediation & Arbitration and others [2015] 10 (LAC) the Employee was dismissed for being an accomplice to or had an involvement in the theft or attempted theft of precious metals which took place at the Employer s premises. The court considered whether or not Mr Maphisa was sufficiently connected with those events to the extent that an inference can be drawn that he made common purpose with those persons committing the theft In Rheinmetall Denel Munition (Pty) Ltd v National Bargainig Council for the Chemical Industry and others [2015] ZALCJHB 49 the labour court held the decision of the Commissioner regarding an allegation of dishonesty was irrational. He accepted the Applicant s rationalisation of her conduct as a trivial instance of dishonesty to such an extent that he found she had not been dishonest. The Commissioner s failure to appreciate the seriousness of later misconduct was not rational. Although this incident is not part of the reasons that lead to Applicant s dismissal, on her own admission it is evident that lying to Respondent had created an untenable situation. The failure to consider the fairness of the dismissal in light of the Code of Good Practice, and the nature of the post (experienced PA) and the reason for the Employee s appointment in the first place, when deciding on the appropriate sanction resulting in an irrational outcome. The award was set aside and the dismissal of the Applicant was found to be fair. OVERTIME CLAIM AND DISHONESTY In Ambro Sales v MEIBC and others [2015] 125 (LC) the Labour Court confirmed the fairness of the Applicant s dismissal for gross dishonesty in that he claimed overtime pay and conducted private business during working hours on a specific working day Misrepresentation In Absa Bank Limited v Rogers and others [2015] 26 (LC) (20 March 2015) the Applicant a private banker, and a FAIS representative in terms of the Financial Advisory and Intermediary Services Act, 37 of 2002 (FAIS), was dismissed for acts of dishonesty and misrepresentation. In terms of legislation a FAIS representative, has to have personal qualities of honesty and integrity. The Respondent, as a financial institution, was duty bound to ensure that it s representatives are fit and proper.

14 The court held that given the nature of the business, being a bank dealing with the funds of members of the public and operating in a highly regulated statutory environment, the interest of the Respondent, those of the persons it serves, as well as it s statutory obligations, dismissal is appropriate despite remorse shown by the employee In Maponya v South African Local Government Bargaining Council (SALGBC) and others [2015] 140 (LC) allegations relating to irregular conclusion of contracts, concluding irregular appointments, making irregular payments and misrepresentation in respect of payments of loans, was held to be serious in nature warranting dismissal under the circumstances Sleeping whilst working impermissible hours and dishonestly receiving payment for such hours In Boardman Brothers (Natal) (Pty) Ltd v CWIU [1998] 7 BLLR 655 (A) The Court held that it would be unfair for an employer to dismiss employees if they were confronted with working hours which they could not physically cope with. The Court further held whilst the employees were at fault in not informing management that they were incapable of working the agreed hours and by claiming payment for the hours, which they had not worked, dismissal under these circumstances was not the appropriate sanction Collective Misconduct In Foschini Group v Maidi & others (2010) 31 ILJ 1787 (LAC) the Court held that a group employees can be dismissed for team misconduct, after the employer recorded a shrinkage of 28% at one of its stores. It was held that as individual components of the group each employee has culpably failed to ensure that the group complies with a rule or attained a performance standard set by the employer In True Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken v CCMA and Others (2015) 2 BLLR 194 LC the Court held that there is no need to prove individual capability in a case of team misconduct In Chauke & others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) the Court held that the dismissal of a group of employees on the grounds of operational requirements may be permitted in circumstances where acts of misconduct were committed by one or more member of a group of employees but where it cannot be ascertained which of the members of the group actually committed the acts of misconduct In FEDCRAW v Snip Trading (Pty) Ltd [2001] BALR 669 (P) employees were held collectively liable if the stock losses in a store exceeded one per cent of turnover and if the stock losses exceeded the limit it was regarded as a breach of their employment contract. The commissioner held that an employee could only be held accountable for acts of misconduct committed by members of a group in three circumstances.

15 The first was where he was one of the persons in the group who actually committed the acts of misconduct The second is where the employee may not actually have committed the acts of misconduct but associated himself with these acts of misconduct or associated himself with the common goal of the group (herewith the doctrine of common purpose ); and Thirdly where he is guilty of derivative misconduct reference was made to Chauke & others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC), where an employee s guilt was based on the fact that the employee did not co-operate with the employer by, for example, failing to identify the employee(s) who were guilty of the primary misconduct, in circumstances where he or she was able to do so In Western Platinum Refinery Ltd v Hlabela and others JA32/2014 the LAC reconsidered the principles of derivative misconduct and held that an employee may be dismissed if the employee fails to disclose actual knowledge of relevant information. There are two requirements for proof of derivative misconduct; firstly, that the employee knew of the wrongdoing and secondly, that the employee failed to disclose that knowledge to the employer or to take reasonable steps to help the employer to acquire that knowledge Polygraph Test In DHL Supply Chain (Pty) Ltd v NBCRFLI and others [2014] 9 BLLR 860 (LAC) (13 May 2014) it was held that the inference to be drawn from the failure of the test is useful as material to determine probabilities. In the absence of expert evidence to explain what that inference is, either generically, or within the bounds of the specific instance itself, and also to justify the explanation of what that is, there is nothing usable at all that might contribute to the probabilities. The Court held that the reliability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for legitimate purposes, must adduce expert evidence of its conceptual cogency and the accuracy of this application in every given case In FAWU obo Kapesi and others v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC) it was stated that at best a polygraph could be used as part of the investigative process to determine whether or not a further investigation into the conduct of a particular individual is warranted In SATAWU and Others v Khulani Fidelity Security Services (Pty) Ltd (2011) (LAC) employees were removed off site if they failed quarterly polygraph tests, at the instance of the Airports Company and thereafter retrenched. This occurred in terms of a collective agreement and it was held that the practice did not result in a violation of any right. The Court held that the purpose of the polygraph test was not to determine who committed theft but rather to test the integrity of the employees involved.

16 In NUM & others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ137 (LC) in terms of the employees employment contract they could be required to successfully undergo a polygraph test if the employer, or its client asked them to. Employees were forced to go and when they failed they were dismissed or operational requirements and the court held that it was bound by the decision of Khulani but was reluctant to find that the dismissal could constituted a dismissal for operational requirements. See also Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others [2008] 3 BLLR 197 (LAC) In Colven Associates George CC v Commission for Conciliation Mediation and Arbitration and Others [2015] 26 (LC) the Employee was dismissed for refusing to undergo a polygraph test. Her dismissal was held to be substantively unfair, but the award was set aside as the commissioner did not properly understand the issue before him. The court held that the Applicant was warned of the consequences of a continued refusal and that, to the point of the conclusion of the arbitration proceedings, she failed to proffer any rational explanation for her refusal. The penalty prescribed by the Employer s disciplinary code was that of dismissal. There could have been no doubt in the Employee s mind that her continued refusal to comply with a repeatedly issued instruction, would have that consequence Insubordination In Wasteman Group v SAMWU [2012] 8 BLLR 778 (LAC) the Court considered the difference between insubordination per se and insubordination which must give rise to the ultimate sanction of dismissal. It was held that the difference between insubordination and gross insubordination is a question of degree. It was held that there is a difference between an employee that partially defies an instruction but later completely complies with it and an employee that deliberately refused to obey and instruction, expressly defying an instruction and challenging the authority of the employer, especially in the presence of other employees In National Union of Mineworkers obo Selemela v Northam Platinum Ltd [2013] 10 (LAC), the court confirmed the dismissal of an Employee who persistently displayed insubordinate behavior, commenting that an Employer should not be expected to tolerate such conduct. The insubordination was sufficiently serious and deliberate and therefore, constituted gross misconduct, justifying dismissal In SAMWU and another v Rand Water and others [2015] 138 (LC) the Employee was dismissed for refusing to carry out reasonable and lawful instructions amounting to gross insubordination and serious disrespect. In considering the seriousness of the insubordination, a distinction was drawn between a mere failure to comply with the instruction, and a deliberate refusal to do so accompanied by a defiant challenge of the employer s authority in the presence of other employees.

17 The Applicant however, was on a path of disrespect and insubordination towards her seniors. Weighing heavily against a sanction short of dismissal, was the cumulative effect of the various acts of insubordination and the lack of any acceptance by the Applicant of the seriousness of her actions or admission of any fault on her part, the absence of any indication of regret on her part, which might indicate a willingness to conform and comply with the reasonable instructions of her superiors in the future, and Applicant s own expressions of distrust of her superiors. There is no reason why an Employer has to tolerate an Employee who prefers always to march to the beat of their own drum Failure to disclose previous dismissal In ESKOM Holdings Ltd v Fipzaz & others (2013) 34 ILJ 549 (LAC) The employee s contract was terminated with Eskom in 2006 for misconduct. Two years later she again applied for a job at Eskom and she did not mention in either her CV or in her interview that Eskom previously dismissed her. The panel did also not enquire about this. She was thereafter offered the position and accepted it. Before she however commenced with her employment Eskom withdrew the offer on the ground that she had not disclosed this material fact. The Court held there was no duty either ex contractu or ex lege on the employee to disclose that she was previously dismissed from Eskom. All the information she provided was true and there was no evidence of fraudulent misrepresentation made by the employee. An employer can only rely on non-disclosure if there is an obligation on the employee to disclose the information In ABSA Bank Ltd v Fouche 2003 (1) SA 176 (SCA) the Court held the test for unlawfulness of non-disclosure in a contractual context related to the following principles: It is not the norm that one contracting party needs to tell the other all he knows about everything that is material. A party is expected to speak when the information he has to impart falls within his exclusive knowledge so that in a practical sense the other party has him as his only source. The information must be such that the other party s right that it be communicated to him would be mutually recognised by honest men in the circumstances Failure to attend a disciplinary hearing There are very few circumstances where an employer can justify failure to allow the employee a hearing but it would be possible under the following circumstances: Where the employee has absconded and the employer, despite all its reasonable efforts, were unable to secure the employee s attendance; The employee refuses to attend the disciplinary hearing thus waiving his right to be heard;

18 The employee fails to attend the hearing without an acceptable explanation In Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 4 ALL SA 866 (SCA) (17 May 2007) the Court held that an employee s deliberate absence from a disciplinary enquiry does not affect the validity of such dismissal In Fidelity Cash Management Service v CCMA & others [2008] 3 BLLR 197 (LAC) it was held that failure to attend a disciplinary hearing would not constitute misconduct since employee did not commit an offence if they decide not to rely on their right to state a case. The Court further held that the fairness of the dismissal must be based on the reasons relied on by the employer at the time of the dismissal In Dolo v CCMA (2011) 32 ILJ 905 (LC) it was confirmed that misconduct outside of the workplace may affect an employee s continued suitability for employment Non adherence to company procedure In Delport v SA Red Cross AMS (Air Mercy Services) and others [2015] 28 (LC) the dismissal of the applicant for amongst others, contravening the AMS policies, SOPS and guidelines in terms of quotations and authorization procedures was held to be fair. The conduct of the Applicant placed the Respondent at serious risk. The Applicant authorized a flight for a patient without having the necessary authority to do so, and then removed the equipment which might well become necessary on the flight. The Commissioner in the arbitration award made the following remark one merely needs a little common sense to realize what would have happened had the patient died on the flight. The craft did not have the recommended equipment on board nor was the patient in the company of someone who was adequately qualified to accompany the patient. The conduct of the applicant potentially exposed the respondent to criminal and civil liability In Mkhaba v Commission for Conciliation, Mediation And Arbitration and others [2015] 131 (LC) the Applicant was dismissed for contravening or failing to comply with the Respondent s (Eskom) security and safety measures, procedures, directives and applicable statutory requirements in that, as a manager who knew about the high security risk at the National control complex, she contravened the Respondent s Access Control Policy and the National Key Point Act by pre-signing and thereby pre-approving a blank visitor s register form for non-eskom employees at the complex. Given the seniority of her position and the nature of the complex and the misconduct she was guilty of, dismissal was confirmed as the appropriate sanction.

19 25.18 Failure to act in good faith In Foschini Group v Maidi & others [2010] 7 BLLR 689 (LAC) the full staff compliment in the store were dismissed for failure to secure assets of the company after substantial stock losses were detected at the clothing store where they had been employed. The employer could not prove that they were in fact stealing the stock, however they were dismissed for gross negligence by failing to take proper care of company property under their control resulting in a financial loss of R as well as an irretrievable breakdown in the trust relationship. The stock losses reached a level in excess of 28% which amounted to items over a period of six months, which was attributed to their lack of commitment towards the company. Consideration was given to various decided cases of team misconduct, with the emphasis on the principle that the innocent must not suffer because the Employer cannot identify the person/s responsible. In this case, all are held responsible for not complying with the rule and not acting in good faith in executing their duties. It therefore lies in each employee s individual culpability for the failure of the group to attain the performance standard set by the employer Dishonesty / fraud In Senqu Municipality v SALGBC and Others (P621/2010) [2015] ZALCPE 24 (27 March 2015) the Employees were charged with acts of misconduct relating to fraudulently issuing learner s, as well as temporary and permanent driver s licences, to members of the public who had not been tested and were not present at the testing station when the examiners certified their presence at the test in question. It was held where the commissioner ignores relevant and material evidence, misconstrues relevant and material evidence, and takes account of speculative considerations in respect of which there is no evidence; the cumulative effect renders the conclusion reached in the award so unreasonable that no reasonable commissioner could have reached the same conclusion. The award was reviewed and set aside and the decision substituted whereas the dismissal of the individual employees was fair Failure to act with due diligence In Rabothatha v MEIBC and others (JR 3019/2012) [2015] ZALCJHB 106 (25 March 2015) the dismissal of an Employee found guilty of signing the production sheet giving the operator the go ahead to run the machine which manufactured 118.5kg scrap, was held to be substantively fair. Considering the Respondent had suffered a financial loss in a period of economic down turn, as a result of this conduct, dismissal was considered to be an appropriate sanction.

20 25.21 Conflict of interest In Nedbank Limited v Mvelase and others (D.299/2014) [2015] ZALCD 18 the employee became involved in the client s business and personal affairs outside the ambit of the professional relationship of adviser and client. According to the Commissioner there was no evidence of a breach of any obvious fiduciary duty. The court held that it was incumbent on the employer to have demarcated the borderline between what it considered to be appropriate relations between an adviser and client, and what was not. In the absence of any clear demarcation, a reasonable decision-maker might well have concluded, like the Commissioner, that it was unfair for the employer to express its discomfort with the ultimate sanction of dismissal Breach of till policy / till shortages: In Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (DA7/2013) [2015] ZALCD 17 the Employees were dismissed for breach of till policy. The Commissioner in analysing the evidence rejected the probability that the sealed bags could be opened and sealed again without showing signs of tampering. The award was set aside on review, in the absence of consideration of all the facts. The Labour Appeal Court held that the evidence points to the fact that no persons other than the Employees were responsible for the till shortages, and therewith confirmed the fairness of the dismissal Sexual assault In Sekobo v MEC Department of Basic Education (Gauteng) and others [2015] ZALCJHB 51 it was held the dismissal of an Administrator accused of sexual assault was substantively fair. The commissioner considered the factual dispute before her and despite contradictions and the ultimate recantation of complainant, held that the evidence of two eye witnesses was credible and preferred to the conspiracy theory offered by Applicant that could not be proven.